The European Centre for Social Welfare Policy and Research supports the Sustainable Development Goals
The posting of third country-nationals (TCNs) in the European Union (EU) has increased substantially over the last ten years. Posting practices involving TCNs sit at the intersection of labour mobility and immigration regimes. Among the main reasons for the increase in posting in general, including TCN posting, is to counter a shortage of workers and a dearth in skill sets in many sectors, such as construction, healthcare, tourism and agriculture. While findings relating to the general characteristics of posted-TCN-workers are available, they do not cover specifically issues relevant to ELA’s mandate and operational activities. Addressing this gap is important on several accounts: first, evidence suggests that the posted-TCN-worker- population experiences a greater degree of vulnerability in the labour market than the non-posted-TCN-worker-population. Second, the use of posted TCNs is often accompanied by violations of legislation that fall within ELA’s competence. Third, labour market intermediaries, such as temporary work agencies, can be used to circumvent the legislation in ELA’s competence. The study, therefore, focuses on such actors as their usage by end-users creates a complex environment that is prone to violation and circumvention of legislation that falls under ELA’s mandate. It is therefore key to investigate the employment contracts, terms, and other arrangements that apply to posted-TCN-workers at the different stages in the contracting chain. As such, the study goes beyond the mere (subjective) posting experience of TCN workers by also seeking insights into the precise underlying contractual arrangements, places and forms of employment. Poland, Portugal, and Slovenia feature among the top sending countries of posted-TCN-workers either in absolute numbers or in relation to their overall labour force. Therefore, these countries and the associated contracting chains are selected to serve as case studies with particular attention paid to Ukrainian, Brazilian, and Bosnian nationals respectively as these nationals represent some of the highest shares of TCN workers.
In line with ELA’s mandate, the purpose of this report is to assist ELA and Member States in their effort to combat labour law violations. Furthermore, the report shall advance knowledge on the posting of TCN workers, in particular regarding contracting and recruitment practices, among Member States. This study, therefore, aims to:
1. take stock of the existing research on posting of TCNs, considering the issues relevant to ELA’s mandate;
2. map and analyse the contracting chains involved in the posting of TCNs: the structure of the chain, the practices of recruitment, transfer of workers, and the terms of their posting;
3. outline the different public and private, formal and informal actors involved in the contracting chains of posted TCN workers starting at the recruitment stage with particular attention paid to the role of labour market intermediaries, such as temporary work agencies;
4. provide a legal assessment of the analysed contracting chains and phenomena with respect to the possible violation of regulations within ELA’s mandate as well as the international regulation of recruitment and legislation relevant to labour exploitation;
5. analyse the specific legal requirements in sending countries for temporary work agencies; and
6. identify the conditions/factors that increase the risk of non-compliance in the posting of workers.
The European Centre for Social Welfare Policy and Research supports the Sustainable Development Goals
